Category: Immigration

Jabari v Turkey: ECHR 11 Jul 2000

A ‘rigorous scrutiny’ was to be conducted of a claim that an individual’s deportation to a third country would expose him to treatment prohibited by Article 3, before it could be rejected.
Held: ‘If the State is to avoid breach of Article 3 by removal of an individual to another territory where he might be ill treated or whence he might be sent elsewhere and ill treated there, the authorities of the first State plainly have to apprise themselves of the relevant law and practice of the place to which the removal will be effected. Otherwise they cannot know whether their actions will violate the ECHR or not. This is not a distinct, separate or adjectival duty, but a necessary incident of the substantive obligation to fulfil Article 3. It is underlined by the need of rigorous scrutiny where an individual claims that expulsion will expose him to Article 3 ill treatment.’

40035/98, (2000) 9 BHRC 1, [2000] ECHR 368, [2000] ECHR 369, [2001] INLR 136, [2011] ECHR 2388
Worldlii, Bailii, Bailii
European Convention on Human Rights 3
Human Rights
Cited by:
Cited – Mohammadi v Advocate General Scotland HCJ 2-May-2003
The applicant had claimed asylum. His claim had been rejected and an order made for repatriation to Iran. His appeal was lodged two days out of time. He appealed its rejection. The solicitors accepted full responsibility for the delay.
Held: . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – Secretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 04 January 2022; Ref: scu.165901

SM (Algeria) v Entry Clearance Officer, UK Visa Section: SC 14 Feb 2018

The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been placed in the legal guardianship of European Union citizens under the Islamic ‘kefalah’ system in her own country.
Held: The Court had jurisdiction to hear the matter but referred three questions to the European Court of Justice.
S would fall within article 3.2(a) if she does not fall within article 2.2(c). The 2006 Regulations have caused confusion by introducing the word ‘relative’ which nowhere appears in article 3.2(a). ‘Family member’ is a wider term than ‘relative’ as it is well capable of including people who are not related by consanguinity or affinity. All that is required is that the person (i) falls within the broad concept of ‘family member’; (ii) was either a dependant or a member of the household of the Union citizen; and (iii) that dependency or household membership was in the country from which the person has or would come. A child for whom the Union citizen has parental responsibility under the law of the child’s country of origin is clearly capable of being regarded as a family member; S was both a dependant and a member of the household of Mr and Mrs M; and this was in Algeria, the country from which she would be coming to this country.
‘If some member states recognise ‘kefalah’ children as direct descendants but others do not, this clearly places barriers to free movement for those European Union citizens who have such children. It also discriminates against those who, for religious or cultural reasons, are unable to accept the concept of adoption as it is understood in the UK and some other European countries, that is, as the complete transfer of a child from one family and lineage to another. On the other hand, the fact that the term ‘direct descendant’ may have an autonomous meaning does not necessarily entail that it should have a broad meaning.
We therefore cannot consider it acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians for the purpose of article 2.2(c). At the same time, we are concerned that such an interpretation could, in some cases, create opportunities for exploitation, abuse and trafficking in children, which it was the object of the Hague Convention to prevent and deter. We are also concerned that an automatic right of entry for ‘kefalah’ children might lead to some of them being placed in homes which domestically would have been rejected as unsuitable.’

Lady Hale, President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
[2018] UKSC 9, [2018] 1 WLR 1035, [2018] 3 All ER 177, [2018] INLR 368, [2018] WLR(D) 91, UKSC 2015/0243
Bailii, Bailii Summary, WLRD, SC, SC Summary,
Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), Council Directive 2004/38/EC, Adoption and Children Act 2002 83, Adoption with a Foreign Element Regulations 2005
England and Wales
Citing:
At AIT – IM240192005 (Unreported) AIT 12-Feb-2007
Reconsideration of the appeal of the appellant, a citizen of India, against the decision of the respondent on 12 March 2004 refusing her entry clearance to the United Kingdom as an adoptive child.
Held: The case was ordered to be reviewed. . .
Cited – MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department CA 5-Feb-2008
The Court set out four avenues for entry to the UK provided by the Rules in respect of a child adopted or intended to be adopted from abroad. . .
Appal from (CA) – SM (Algeria) v Entry Clearance Officer, UK Visa Section CA 4-Nov-2015
The Entry Clearance Officer appealed from a decision that a child assigned to be under guardianship under the Islamic ‘kefalah’ system in her own country was to be treated on the basis that she did fall within the definition of ‘extended family . .
Cited – Secretary of State for The Home Department v Islam and Another ECJ 5-Sep-2012
ECJ Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 3(2) – Obligation to facilitate, in accordance with . .
Cited – Sala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .
Cited – Coman and Others v Inspectoratul General Pentru Imigrari and Others ECJ 11-Jan-2018
(Opinion) Reference for a preliminary ruling – Citizenship of the Union – Directive 2004/38/EC – Article 2(2)(a) – Concept of ‘spouse’ – Right of citizens of the Union to move and reside within the territory of the Union – Marriage between persons . .
Cited – Khan v Secretary of State for The Home Department and Another CA 9-Nov-2017
The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for . .
ECJ decision awaited – Banger (Unmarried Partner of British National : South Africa) UTIAC 30-Mar-2017
The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State . .

Lists of cited by and citing cases may be incomplete.

Immigration, European, Children, Adoption

Updated: 04 January 2022; Ref: scu.604792

Banger (Unmarried Partner of British National : South Africa): UTIAC 30 Mar 2017

The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
(2) Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (‘the Directive’)?
(3) Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
(4) Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?

[2017] UKUT 125 (IAC)
Bailii
England and Wales
Cited by:
ECJ decision awaited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 04 January 2022; Ref: scu.588796

Khan v Secretary of State for The Home Department and Another: CA 9 Nov 2017

The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for the Home Department to exercise her discretion to grant a Residence Card to a person claiming to be an Extended Family Member – whether the decision in question was one which ‘concerns . . an entitlement’ to enter and be granted a residence card? Both the appellant and the Secretary of State had argued then that there was a two stage process: first the factual decision whether the appellant fell within the definition of an extended family member; and second the decision whether it was appropriate to grant entry and a residence card; once granted, this would result in an entitlement to enter and reside; hence the decision ‘concerns’ that entitlement because it ‘is relevant to or important to’, ‘relates to’ or ‘is about’ the entitlement to a residence card.
Held: The decision in Sala was overruled.
Irwin LJ held that ‘a decision which ‘concerns’ an entitlement appears to me naturally to include a decision whether to grant such an entitlement’
Longmore LJ, agreeing, added that, even where there was a discretion, it had to be exercised in accordance with the correct legal principles: a litigant was entitled to a decision exercised in that way.

Sir Terence Etherton MR, Longmore, Irwin LJJ
[2017] EWCA Civ 1755, [2017] WLR(D) 747, [2018] Imm AR 440, [2018] 1 WLR 1256, [2018] INLR 39
Bailii, WLRD
England and Wales
Citing:
Wrongly Decided – Sala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .

Cited by:
Cited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 04 January 2022; Ref: scu.599373

Sala (EFMS: Right of Appeal : Albania): UTIAC 19 Aug 2016

UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning ‘extended family members’ involve, not only a determination as to whether a person falls within the definition of extended family member, but also the exercise of a discretion whether to admit or grant a residence card to that person, they did not concern that person’s ‘entitlement’ to either.

[2016] UKUT 411 (IAC), [2017] Imm AR 141
Bailii
England and Wales
Cited by:
Wrongly Decided – Khan v Secretary of State for The Home Department and Another CA 9-Nov-2017
The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for . .
Cited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Immigration, Litigation Practice

Updated: 04 January 2022; Ref: scu.570460

Abbasi and Another (Visits – Bereavement – Article 8): UTIAC 29 Jul 2015

UTIAC 1. The refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members the recent death of a close relative and visiting the grave of the deceased is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR.
2. The question of whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case.
3. The Tribunal should adopt a structured and sequential approach to the Article 8 issues.

[2015] UKUT 463 (IAC)
Bailii
European Convention on Human Rights 8
England and Wales

Immigration, Human Rights

Updated: 03 January 2022; Ref: scu.552007

HA (Article 24 QD) Palestinian Territories: UTIAC 31 Jul 2015

(i) Article 24 of the Qualification Directive does not confer a substantive right of residence in the Member State concerned. Rather, its function is to determine the modalities whereby a right of residence otherwise existing is to be documented.
(ii) The Procedures Directive is a truly adjectival instrument of EU legislation. It does not create any substantive rights in the realm of asylum or subsidiary protection.

McCloskey P J
[2015] UKUT 465 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.552008

Bossade (Ss117A-D-Interrelationship With Rules): UTIAC 16 Jul 2015

1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims.
2. Ordinarily a court or tribunal will, as a first stage, consider an appellant’s Article 8 claim by reference to the Immigration Rules that set out substantive conditions, without any direct reference to Part 5A considerations. Such considerations have no direct application to rules of this kind. Part 5A considerations only have direct application at the second stage of the Article 8 analysis. This method of approach does not amount to according priority to the Rules over primary legislation but rather of recognising their different functions.
3. In the context of foreign criminal cases (because the provisions found in Part 13 of the Rules are a complete code encompassing both stages of the Article 8 assessment), this means that Part 5A considerations have no direct role at the first stage when a court or tribunal is deciding whether an applicant meets the substantive conditions of paragraphs 399 or 399A of the Immigration Rules. They only have direct application at the second-stage, viz. assessment under the rules that involve a proportionality assessment: viz. paragraph 398 and (in revocation cases) paragraph 390A. In cases other than those concerning deportation of foreign criminals, where the Rules are not a complete code, it may still be necessary to conduct this second stage outside the Rules: see Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 at [39]. 4. Whilst Part 5A considerations may have indirect application to the Immigration Rules, including those setting out substantive conditions such as paragraphs 399 and 339A, this is limited to their role as statements of principles that can be used where appropriate to inform the meaning of key terms set out in such paragraphs.
5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at ‘ties’ per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109.

Storey, Dawson UTJJ
[2015] UKUT 415 (IAC), [2016] INLR 242, [2015] Imm AR 1281
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551565

MAB (Para 399; ‘Unduly Harsh’): UTIAC 16 Jul 2015

1. The phrase ‘unduly harsh’ in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be ‘unduly harsh’ for an individual involves more than ‘uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging’ consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be ‘harsh’ if they are ‘severe’ or ‘bleak’ and they will be ‘unduly’ so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
(MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] applied.)

Grubb UTJ, Phillips DUTJ
[2015] UKUT 435 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551567

BM (False Passport): UTIAC 12 Aug 2015

UTIAC The mere fact that an asylum claimant utilised a false passport or kindred document in departing the DRC will not without more engage the risk category specified in [119(iv)] of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] 293 (IAC). The application of this guidance will be dependent upon the fact sensitive context of the individual case. The Tribunal will consider, inter alia, the likely state of knowledge of the DRC authorities pertaining to the person in question. A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the DRC authorities. Thus in every case there will be an intense focus on matters such as publicity, individual prominence, possession of a passport, the standard emergency travel document arrangements (where these apply) and how these matters impact on the individual claimant.

McCloskey J
[2015] UKUT 467 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551573

Yusuf (EEA – Ceasing To Be A Jobseeker; Effect): UTIAC 15 Jul 2015

An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child

Storey, Rintoul UTJJ
[2015] UKUT 433 (IAC)
Bailii
England and Wales

Immigration, European

Updated: 03 January 2022; Ref: scu.551571

Amirteymour and Others (EEA Appeals; Human Rights): UTIAC 4 Aug 2015

UTIAC Where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations. Neither the factual matrix nor the reasoning in JM (Liberia) [2006] EWCA Civ 1402 has any application to appeals of this nature.

McCloskey J PUT, Ockleton VP, Rintoul UTJ
[2015] UKUT 466 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551572

Forman (SS 117A-C Considerations): UTIAC 19 Jun 2015

(i) The public interest in firm immigration control is not diluted by the consideration that a person pursuing a claim under Article 8 ECHR has at no time been a financial burden on the state or is self-sufficient or is likely to remain so indefinitely. The significance of these factors is that where they are not present the public interest is fortified.
(ii) The list of considerations contained in section 117B and section 117C of the Nationality, Immigration and Asylum Act 2002 (the ‘2002 Act’) is not exhaustive. A court or tribunal is entitled to take into account additional considerations, provided that they are relevant in the sense that they properly bear on the public interest question.
(iii) In cases where the provisions of sections 117B-117C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.

McCloskey J P, Macleman UTJ
[2015] UKUT 412 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551561

GB, Regina (on The Application of) v Oxfordshire County Council (Age Dispute- Relevance of Documents) IJR: UTIAC 24 Feb 2015

UTIAC The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.

Clive Lane UTJ
[2015] UKUT 429 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551574

NA and VA (Protection: Article 7, Qualification Directive): UTIAC 19 Jun 2015

The word ‘generally’ in Article 7(2) of Council Directive 2004/83/EC (the Qualification Directive) denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take ‘reasonable steps’ imports the concepts of margin of appreciation and proportionality.

McCloskey J P
[2015] UKUT 432 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551562

Singh And Others v Minister for Justice and Equality: ECJ 16 Jul 2015

ECJ Judgment – Reference for a preliminary ruling – Directive 2004/38/EC – Article 13(2)(a) – Right of residence of family members of a Union citizen – Marriage between a Union citizen and a third-country national – Retention of the right of residence of a third-country national after the departure of the Union citizen from the host Member State, followed by divorce – Article 7(1)(b) – Sufficient resources – Taking into account the resources of the spouse who is a third-country national – Right of third-country nationals to work in the host Member State in order to contribute to obtaining sufficient resources

C-218/14, [2015] EUECJ C-218/14, [2015] WLR(D) 312, ECLI:EU:C:2015:476
Bailii, WLRD
Directive 2004/38/EC 1392)(a)

European, Family, Immigration

Updated: 03 January 2022; Ref: scu.550995

Imafidon v Secretary of State for The Home Department: Admn 7 Apr 2015

Claim for judicial review of decisions of the defendant in 2013 to detain and remove the claimant, a national of Nigeria born on 5 April 1962, during a period whilst he was seeking to obtain residence rights in the UK pursuant to the Immigration (European Economic Area) Regulations 2006

Alice Robertson HHJ
[2015] EWHC 1790 (Admin)
Bailii

Immigration

Updated: 03 January 2022; Ref: scu.551005

Assad v Secretary of State for The Home Department: QBD 31 Jul 2015

The Claimant seeks damages for the tort of false imprisonment. He alleges that the Defendant’s servants or agents falsely imprisoned him from 30 June 2011 until 6 September 2012. The Claimant argues that he is entitled to compensatory damages, aggravated damages and exemplary damages. The Defendant asserts that the Claimant was not falsely imprisoned at all; rather he was detained lawfully throughout the period in question in exercise of the power to detain conferred upon the Defendant by section 36 of the UK Borders Act 2007.

Wyn Williams J
[2015] EWHC 2281 (QB)
Bailii
UK Borders Act 2007 36
England and Wales

Torts – Other, Immigration

Updated: 03 January 2022; Ref: scu.550962

Iqbal and Others, Regina (on The Application of) v The Secretary of State for The Home Department: CA 30 Jul 2015

Three applicants had sought an extension of their leave to remain pending the determination of an application to vary the period of leave. In each case, the applications had been faulty, either for non-payment of fees, or failure to provide biometric information. The appellants contended that an application which was ‘invalid’ under the regulations was still effective to engage the automatic extension provisions.
Held: Section 3C did not extend to an application which was not validly made in accordance with the rules.

Elias, Rafferty, Beatson LJJ
[2016] 2 All ER 469, [2015] EWCA Civ 838, [2015] WLR(D) 351, [2016] INLR 367, [2016] 1 WLR 582, [2016] Imm AR 77
Bailii, WLRD
Immigration Act 1971 3C, Immigration, Nationality and Asylum Act 2006 50, Immigration and Nationality (Fees) Order 2011, Immigration and Nationality (Fees) Regulations 2011, UK Borders Act 2007 5, Immigration (Biometric Registration) Regulations 2008 3
England and Wales
Cited by:
Cited – Mirza and Others, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Dec-2016
In each case the applicant had sought to extend their leave to remain within the necessary time scale, but their applications had been defective. In one case the required biometric information had not been supplied, and in the other two the fees had . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 03 January 2022; Ref: scu.550898

D, Regina (on The Application of) v Secretary of State for The Home Department: Admn 9 Jul 2010

Application for judicial review of a decision by the Secretary of State to certify as clearly unfounded the claimant’s claim that his deportation to Jamaica would infringe his rights under Articles 3 and 8 of the European Convention on Human Rights.

Nicol J
[2010] EWHC 2110 (Admin)
Bailii
England and Wales

Immigration, Human Rights

Updated: 03 January 2022; Ref: scu.550655

Giri, Regina (on The Application of) v Secretary of State for The Home Department: CA 28 Jul 2015

Appeal against an order dismissing the application of the appellant for judicial review of the Secretary of State’s decision refusing his application for leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant.
Held: The Court applied the Wednesbury criterion in holding that her finding of fact had not been unreasonable.

Richards, Beatson, King LJJ
[2015] EWCA Civ 784, [2015] WLR(D) 341, [2016] INLR 94, [2016] Imm AR 46, [2016] 1 WLR 4418
Bailii, WLRD
England and Wales
Cited by:
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 03 January 2022; Ref: scu.550640

Vassell, Regina (on The Application of) v Secretary of State for The Home Department (S96 Niaa 2002, Test; Merits) (IJR): UTIAC 3 Jun 2015

UTIAC In J v Secretary of State for the Home Department [2009] EWHC 705 (Admin), Stadlen J set out a four stage process that must be undertaken by the Secretary of State before she could certify a claim under s.96 of the Nationality, Immigration and Asylum Act 2002. The merits of any new matter raised by an applicant are not relevant to this process.

Latter UTJ
[2015] UKUT 404 (IAC)
Bailii
England and Wales
Citing:
Cited – J, Regina (On the Application of) v Secretary Of State for the Home Department Admn 2-Apr-2009
Application for judicial review of a decision made by the Secretary of State for the Home Department on 15 June 2006 to certify the Claimant’s asylum and human rights claims under Section 96 of the 2002 Act on the grounds that they relied on matters . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 03 January 2022; Ref: scu.550623

Hamasour, Regina (on The Application of) v Secretary of State for The Home Department (Supplementary Decision Letter – Effect): UTIAC 13 Jul 2015

Immigration Judicial Review – The decision in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin) may provide a useful tool on the issue of whether a supplementary decision letter amounts to a fresh decision, or whether it merely supplements the decision already made, and in relation to matters to be considered in terms of the effect of such a supplementary decision letter.

Coker UTJ
[2015] UKUT 414 (IAC)
Bailii
England and Wales
Citing:
Useful – Nash v Chelsea College of Art and Design QBD 11-Jul-2001
A student’s appeal against her examination marking was heard, but the reasons were only given some months later.
Held: When looking to see whether those reasons should be admitted, a court should be careful before accepting late reasons, . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 03 January 2022; Ref: scu.550625

Kuruwitage, Regina (on The Application of) v Secretary of State for The Home Department: UTIAC 17 Jul 2015

UTIAC Immigration Judicial Review – decision on the judicial review application a Sri Lankan citizen, brought on the basis that the Secretary of State was acting ultra vires in using the Section 10 procedure and further that she should have considered whether to curtail his existing leave giving rise to an in-country right of appeal.

Gleeson UTJ
[2015] UKUT 402 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550626

BM and Others (Returnees – Criminal and Non-Criminal) (CG): UTIAC 2 Jun 2015

1. A national of the Democratic Republic of Congo (‘DRC’) who has acquired the status of foreign national offender in the United Kingdom is not, simply by virtue of such status, exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR in the event of enforced return to the DRC.
3. A national of the DRC who has a significant and visible profile within APARECO (UK) is, in the event of returning to his country of origin, at real risk of persecution for a Convention reason or serious harm or treatment proscribed by Article 3 ECHR by virtue of falling within one of the risk categories identified by the Upper Tribunal in MM (UDPS Members – Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023. Those belonging to this category include persons who are, or are perceived to be, leaders, office bearers or spokespersons. As a general rule, mere rank and file members are unlikely to fall within this category. However, each case will be fact sensitive, with particular attention directed to the likely knowledge and perceptions of DRC state agents.
4. The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in the DRC or in respect of whom there are unexecuted arrest warrants in the DRC or who allegedly committed an offence, such as document fraud, when departing the DRC. Such persons are at real risk of imprisonment for lengthy periods and, hence, of treatment proscribed by Article 3 ECHR.

[2015] UKUT 293 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550619

AA (Upper Tribunal – Review Power) Uzbekistan: UTIAC 1 Jun 2015

1. By virtue of rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 a condition precedent to a review is an application for permission to appeal against the decision of the Upper Tribunal.
2. Pursuant to s.10 of the Tribunals, Courts and Enforcement Act 2007, rules 45 and 46 make no provision for an application for a review; the power is exercisable only on the initiative of the Upper Tribunal.
3. The clear purpose behind rule 45, which is to provide a filter mechanism to help ensure that obvious errors based on oversight of a legislative provision or binding authority can be corrected (and set aside under rule 47) without unnecessarily burdening the Court of Appeal.

[2015] UKUT 330 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550618

Khan, Regina (on The Application of) v Secretary of State for The Home Department (Right of Appeal – Alternative Remedy) (IJR): UTIAC 15 Jun 2015

Although each case must be determined on its own facts, in cases where a person seeks to dispute the Secretary of State’s assertions as to the availability of an appeal to the First-tier Tribunal, the appropriate course is for such person to lodge a notice of appeal with the First-tier Tribunal requesting that it determine this issue. Given the existence of this suitable alternative remedy, it will only be in exceptional circumstances that the Upper Tribunal will exercise its discretion and grant relief to a person who seeks to raise this same issue before it in judicial review proceedings brought against the Secretary of State.

[2015] UKUT 353 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550620

Oladeji (S3 Bna 1981): UTIAC 21 May 2015

Whilst s.65 of the Immigration Act 2014, which came into force on 6 April 2015 inserts new provisions into the British Nationality Act 1981 for persons born before 1 July 2006 that create a registration route for those who would currently have an entitlement to registration under the British Nationality 1981 Act but for the fact that their parents are not married, those provisions (like the pre-existing policy set out in Chapter 9 of the UK Visas and Immigration and Nationality Instructions), are predicated on there having been an application made under s. 3(1) of the British Nationality Act 1981.

Nicol J
[2015] UKUT 326 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550617

Badewa (SS 117A-D and EEA Regulations): UTIAC 29 May 2015

UTIAC The correct approach to be applied by tribunal judges in relation to ss.117A-D of the Nationality, Immigration and Asylum 2002 (as amended) in the context of EEA removal decisions is:
(i) first to decide if a person satisfies requirements of the Immigration (European Economic Area) Regulations 2006. In this context ss.117A-D has no application;
(ii) second where a person has raised Article 8 as a ground of appeal, ss.117A-D applies.

Thirlwall J, Storey UTJ
[2015] UKUT 329 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550613

Secretary of State for The Home Department v Islam and Another: ECJ 5 Sep 2012

ECJ Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 3(2) – Obligation to facilitate, in accordance with national legislation, entry and residence for ‘any other family members’ who are dependants of a Union citizen
Advocate General Bot (

Skouris, P
C-83/11, [2012] EUECJ C-83/11, [2012] 3 CMLR 55, [2013] 2 WLR 230, [2013] INLR 334, [2013] QB 249, ECLI:EU:C:2012:519, [2014] All ER (EC) 340, [2013] Imm AR 73, [2012] WLR(D) 259
Bailii, WLRD
Directive 2004/38/EC
European
Cited by:
Cited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 03 January 2022; Ref: scu.463848

JS, Regina (on The Application of) v Secretary of State for The Home Department: Admn 28 Oct 2020

The claimant seeks permission to apply for judicial review of a decision described as follows:
‘The Secretary of State’s ongoing decision that parents and siblings of refugee children will not be entitled to family reunion on the same basis as the spouses and children of adult refugees under the Immigration Rules’.

Mrs Justice Farbey DBE
[2020] EWHC 3053 (Admin)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.655901

Rasheed, Regina (on The Application of) v Secretary of State for The Home Department (Rev 1): Admn 16 Jul 2015

Judicial review claim in which the Claimant sought an order quashing a decision to declare null and void the grant to him of British citizenship. That decision was taken by the Defendant on the basis that in and after 2001, when he arrived in the UK and claimed asylum, the Claimant deceived the Defendant by pretending to be someone he was not, and in particular by giving a false place of birth; and that the Defendant granted him leave to remain and in due course citizenship in reliance on the false information. In consequence, the Defendant determined, citizenship had never in law been granted to the Claimant.

Warby J
[2015] EWHC EWHC 2052 (Admin)
Bailii

Immigration

Updated: 02 January 2022; Ref: scu.550362